10.19.11

Three Judicial Nominations Approved By Senate

WASHINGTON (Wednesday, Oct. 19, 2011) – The U.S. Senate Wednesday afternoon confirmed three pending nominees to fill vacancies on federal district courts in Pennsylvania and Florida.  The nominations were approved by the Judiciary Committee in July.

Another 23 judicial nominations are pending on the Senate’s Executive Calendar awaiting final approval.

“I hope that in the weeks ahead we can build on today’s progress by considering more of the nearly two dozen well-qualified nominees still awaiting a Senate vote,” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.).  “This is an area where the Senate must come together to address the serious judicial vacancies crisis on Federal courts around the country that has persisted for well over two years. We can and must do better for the nearly 170 million Americans being made to suffer by these unnecessary Senate delays.”

The Senate Wednesday confirmed the nominations of Robert Scola, Jr., to the federal district court in the Southern District of Florida. Mark Hornak to the federal district court in the Western District of Pennsylvania; and Robert Mariani to the federal district court in the Middle District of Pennsylvania.  Scola and Mariani will fill vacancies that have been designated judicial emergencies by the Administrative Office of the U.S. Courts.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Judicial Nominations
October 19, 2011

The Senate will vote today on three of the 26 judicial nominations reported favorably by the Judiciary Committee and still awaiting a Senate vote.  All three of these nominations, two to Federal district courts in Pennsylvania and one to the Southern District of Florida, were reported unanimously by the Judiciary Committee before the August recess. All three have the support of both Democratic and Republican home state Senators.  Two of them are to fill judicial emergency vacancies.  Senate Democrats were prepared to have votes on all three nominations three months ago when they were first reported to the Senate.  I have heard no reason or explanation for why the Republican leadership refused until now to consent to votes on these nominations. 

There is also no good reason or explanation for the Republican leadership’s continued refusal to vote on the more than two dozen nominations stalled before the Senate.  With Republican agreement, we could vote on all of them.  Like the three nominations the Senate considers today, 21 of the other judicial nominations pending on the Calendar and still being delayed were reported unanimously by the Judiciary Committee.  At a time when vacancies on Federal courts throughout the country remain near 90, with over 10 percent Federal judgeships vacant, the delays in considering and confirming these consensus judicial nominees is inexcusable. 

The American people need functioning Federal courts with judges, not vacancies.  In his recent letters to the Senate Majority Leader and Republican leader, Bill Robinson, the president of the American Bar Association, highlighted the serious problems created by these excessive vacancies, writing:

“Across the nation, federal courts with high caseloads and longstanding or multiple vacancies have no choice but to delay or temporarily suspend their civil dockets due to Speedy Trial Act requirements.  This deprives our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well-being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes.”  

Mr. Robinson is not alone.  We recently heard from Justice Scalia, who testified before the Senate Judiciary Committee that the extensive delays in the confirmation process are already having a chilling effect on the ability to attract talented nominees to the Federal bench.  Chief Justice Roberts has also described the “persistent problem of judicial vacancies in critically overworked districts.”   Justice Kennedy has spoken about the threat to the quality of American justice. This is not a partisan issue, but an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts.

Though it is within the Senate’s power to take significant steps to address this problem, refusal by Senate Republicans to consent to voting even on consensus judicial nominations has kept judicial vacancies high for years.  The number of judicial vacancies has been near or above 90 for well over two years.  A recent report by the nonpartisan Congressional Research Service found that we are in the longest period of historically high vacancy rates in the last 35 years.  These needless delays do nothing to help solve this serious problem and are damaging to the Federal courts and the American people who depend on them. 

More than half of all Americans—almost 170 million—live in districts or circuits that have a judicial vacancy that could be filled today if the Senate Republicans just agreed to vote on the nominations now pending on the Senate calendar.  As many as 25 states are served by Federal courts with vacancies that would be filled by these nominations.  Millions of Americans across the country are harmed by delays in overburdened courts.  The Republican leadership should explain why they will not consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies.

Senator Grassley and I have worked together to ensure that each of the 26 nominations on the Senate calendar was fully considered by the Judiciary Committee after a thorough but fair process, including completing our extensive questionnaire and questioning at a hearing.  In fact, all the nominations reported by the Committee have not only gone through vetting by the Committee, but were by the administration. The White House has worked with the home state Senators, Republicans and Democrats, and each of the judicial nominees being delayed from a Senate vote is supported by both home state Senators.  The FBI has conducted a thorough background review of each nominee.  The ABA’s Standing Committee on the Federal Judiciary has conducted a peer review of their professional qualifications.   When the nominations are then reported unanimously by the Judiciary Committee, there is no reason for months and months of further delay before they can start serving the American people.   

Despite the damaging high vacancies that have persisted throughout President Obama’s term, some Republican Senators have tried to excuse their delay in taking up nominations by suggesting that the Senate is doing better than we did during the first three years of President Bush’s administration.  It is true that President Obama is doing better in that he has worked more closely with home state Senators of both parties.  As I have noted, all of the judicial nominees pending and being stalled on the Senate Executive Calendar have the support of both home state Senators in every case.  That was not true of President Bush and led to many problems.

I have continued the practices I followed as chairman when President Bush was in office.  In fact, when the Kansas Senators reversed themselves and opposed a judicial nominee that they had once approved, I honored their change of position and did not proceed to a vote in Committee on that nominee.

But it is wrong to suggest that the Senate has achieved better results than we did in 2001 through 2003.  As I have pointed out, in the 17 months I chaired the Judiciary Committee in 2001 and 2002, the Senate confirmed 100 of President Bush’s Federal circuit and district court nominees.  By contrast, after the first two years of President Obama’s administration, the Senate was only allowed to proceed to confirm 60 of his Federal circuit and district court nominees.  Indeed, as 2010 was drawing to a close, Senate Republicans refused to proceed on 19 judicial nominees that had been considered and reported by the Judiciary Committee and forced them to be returned to the President.  It has taken the Senate nearly twice as long to confirm the 100th Federal circuit and district court judge nominated by President Obama as we had when President Bush was in the White House.

During the third year of President Bush’s administration, the Senate confirmed 68 of his Federal circuit and district court nominees.  Indeed, by mid-October 2003, 63 judges had been confirmed.  In contrast, this year the Senate has yet to confirm 50 of President Obama’s judicial nominees-- despite the fact that 26 have been ready for final consideration and approval and remain stalled from confirmation by the Senate.

For those who contend percentages are significant, I note that The Washington Post reported this week that a lower percentage of President Obama's nominees have been confirmed than President Bush's, with only 68 percent of President Obama’s Federal circuit and district court nominees confirmed compared to 81 percent of President Bush’s. 

I think confirmations and vacancies numbers better reflect the reality in our Federal courts and for the American people.  It is hard to see how the Senate is supposed to be doing better when it remains so far behind the pace we set in those years.  During President Bush’s first four years, the Senate confirmed a total of 205 Federal circuit and district court judges.  As of today, we have almost 100 confirmations of President Obama’s circuit and district court nominations to go in order to match that total during the next 12 months.  At this juncture in President Bush’s administration the Senate had confirmed 163 Federal circuit and district court judges, and the vacancy rate was down to five percent, with 46 vacancies.  By contrast confirmations of President Obama’s Federal circuit and district court nominees total only 109, and judicial vacancies are now nearly twice as high with a vacancy rate of over 10 percent.  

This is not the way to make real progress.  No resort to percentages of nominees “processed” or “positive action” by the Committee can excuse the lack of real progress by the Senate. In the past, we were able to confirm consensus nominees more promptly, often within days of being reported to the full Senate.  They were not forced to languish for months.  The American people should not have to wait weeks and months for the Senate to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country.

All three of the nominations the Senate will vote on today were reported unanimously by the Committee in July.  President Obama first nominated Robert Mariani in December 2010 to fill a judicial emergency vacancy in the Middle District of Pennsylvania.  Mr. Mariani has been a litigator in private practice for 35 years.  For almost 20 years, he has managed his own law firm as a solo practitioner.  Mr. Mariani has the bipartisan support of his home-state Senators, a Democrat and a Republican.  The ABA’s Standing Committee on the Federal Judiciary unanimously rated him “well qualified” to serve, its highest possible rating.  

Mark Hornak is nominated to fill a vacancy in the U.S. District Court for the Western District of Pennsylvania.  As with Mr. Mariani, both of Pennsylvania’s Senators support Mr. Hornak’s nomination, which received the highest possible rating from the ABA’s Standing Committee on the Federal Judiciary, unanimously “well qualified.”  Mr. Hornak has worked in private practice for 30 years in the Pittsburgh office of Buchanan, Ingersoll & Rooney, where he is a member of the firm’s Executive Committee.  He has served as a court-approved mediator and special master in the Western District of Pennsylvania, the District to which he is nominated.  Following his law school graduation, he served as a law clerk to Judge James Sprouse of the United States Court of Appeals for the Fourth Circuit. 

We will also vote on the nomination of Judge Robert Scola to fill a judicial emergency vacancy in the Southern District of Florida.  For the past 16 years, Judge Scola has served as a state judge in the Eleventh Judicial Circuit of Florida.  He has been re-elected to that position three times.  Judge Scola previously spent nine years in private practice as a criminal defense attorney, and six years as a state prosecutor in Miami-Dade County.  The ABA’s Standing Committee on the Federal Judiciary unanimously rated Judge Scola “well qualified” to serve, its highest rating.    Judge Scola has the bipartisan support of his home state Senators, a Democrat and a Republican.  The Chief Judge for the Southern District of Florida, Judge Federico Moreno, a President George H.W. Bush appointee, wrote months ago to the Senate to urge the speedy confirmation of Judge Scola to address his court’s overburdened schedule.  I am glad we are finally able to consider his nomination today.

I hope that in the weeks ahead we can build on today’s progress by considering more of the nearly two dozen well-qualified nominees still awaiting a Senate vote.  This is an area where the Senate must come together to address the serious judicial vacancies crisis on Federal courts around the country that has persisted for well over two years. We can and must do better for the nearly 170 million Americans being made to suffer by these unnecessary Senate delays. 

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